By Lindsay Marchello

With bone marrow donors in short supply, thousands of cancer patients die every year waiting for a match. A life-saving means of encouraging more donors may soon be at hand.

Last week, the U.S. Department of Health and Human Services withdrew a controversial proposed regulation barring bone marrow donors from receiving payment for their donation.

Under the National Organ Transplant Act of 1984, donating an organ for payment is a crime, with punishment ranging from a fine of $50,000 or up to five years in jail. In 2013, the Obama administration proposed a rule expanding the definition of human organs to include bone marrow, which made receiving payment for bone marrow donations illegal under the transplant order.

The Institute for Justice, a nonprofit libertarian public interest law firm, has long argued in favor of compensation for bone marrow donors. It even filed a lawsuit in 2009 against then-U.S. Attorney General Eric Holder. In 2012, the 9th U.S. Circuit Court of Appeals ruled in Flynn v. Holder that the most common method for donating bone marrow called apheresis did not fall under the transplant act’s restrictions.

While the Obama administration did not appeal the court’s decision, it did return with the proposed rule a year later, prompting swift condemnation from the Institute for Justice.

“Under the proposed rule, HHS sought to do something Congress never authorized it to do: define loose cells floating, such as blood stem cells, as a ‘human organ’ when such cells are not in fact a human organ,” Jeff Rowes, a senior attorney with the Institute for Justice argued in a news release. “Banning compensation for donors would have eliminated the best incentive we have — money — for persuading strangers to work for each other.”

With 11,000 Americans in desperate need of bone marrow transplants, finding donors is a challenge. According to the Institute for Justice, only 30 percent of patients who need a bone marrow transplant have a matching donor in their family. The remaining 70 percent must find a match on the national registry, but it takes time to find a matching donor, something patients have in short supply.

“During the past four years, thousands of Americans needlessly died because compensation for bone marrow donors was unavailable,” Rowes said. “We aim to change that.”

By withdrawing the proposed rule, HHS opens the door for organizations to provide financial incentives to encourage more people to become bone marrow donors. Organizations like More, a California-based nonprofit organization, plan to compensate donors with a $3,000 scholarship, housing allowance or a charitable donation of the donor’s choice if they donate bone marrow. With the rule gone, More Marrow Donors and others like it can move forward with plans to ease the donor shortage.

“Researchers and entrepreneurs are free to create programs that are sure to save thousands of lives,” Rowes said.

While not commenting on the specific move by HHS repealing the proposed rule, the N.C. Medical Society said in a statement that it continues supporting “efforts to encourage citizens to consider becoming bone marrow donors.”

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Lindsay Marchello is an associate editor at Carolina Journal.

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